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Same sex relationships in the law

There has been much coverage of the progress through Parliament and possible political consequences of the Marriage (Same Sex Couples) Act 2013. On 17 July 2013 the Bill passed into law and with it the simple proposition that "marriage of same sex couples is lawful" (section 1(1)).

The Act contains provisions setting out that there is no requirement on clerks in holy orders to solemnise or conduct same-sex marriage, for the creation of regulations for the conversion of civil partnerships into marriage and for the review of survivor benefits under occupational pension schemes.

The Women and Equalities Minister has said that the first same-sex weddings could take place as early as summer 2014. This is the consequence of the time it will take to bring the law into force and not a comment on how long it may take to organize a wedding!

A week earlier, on 9 July, the Court of Appeal gave its judgment in case (Black v Wilkinson) involving a bed-and-breakfast proprietor who did not want unmarried couples to share a room and turned away a homosexual couple. They sued her for discrimination. The decision (which was made under the earlier regulations and not the Equality Act 2010) confirmed that “where businesses are open to the public on a commercial basis they have to accept the public as it is constituted” and therefore the respect for the proprietress’s religious beliefs did not extend to allowing her to discriminate against same-sex couples.

Of particular legal interest is the observation of the Master of the Rolls (who gave the leading judgment of the court) that an earlier decision of the Court of Appeal (Preddy v Bull) which held that not allowing unmarried couples to share a room was directly discriminatory against homosexual couples. The Court in Preddy had held that because homosexuals could not get married, a bar on unmarried couples was directly discriminatory against them. While not formally overturning the decision, the Court in Black felt that the better analysis was to note that since unmarried heterosexual couples were also caught by the bar, the discrimination was indirect, meaning that it would be unlawful only if the discriminator could not show that the policy was justified.